MELENDEZ-DIAZ CASE: VIRGINIA DEFENCE LAWYER SAYS DECISION COULD LEAD TO ALTERNATIVE DRUG TREATMENT COURTS; WHAT'S WRONG WITH THAT?

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"SETTING A TIME LIMIT FOR DEFENDANTS TO NOTIFY THE COURT SOLVES THE STATE'S STATUTORY PROBLEM, SAID GENE HART, A DEFENSE ATTORNEY FOR 13 YEARS.

BUT HART, A ROCKINGHAM COUNTY DEMOCRAT WHO IS CHALLENGING LOHR IN THE 26TH HOUSE DISTRICT, SAID THE COURT RULING IS LIKELY TO LEAD TO OTHER CHANGES IN THE WAY THE LEGAL PROCESS WORKS.

ONE OUTCOME OF THE MELENDEZ-DIAZ CASE MAY BE TO INCREASE THE ABILITY OF DEFENSE ATTORNEYS TO GET BETTER DEALS FOR THEIR CLIENTS, HART SAID.

THE PRESSURE TO HAVE A LAB TECHNICIAN IN COURT, HART SAID, COULD ALSO LEAD THE STATE TO EXPAND ALTERNATIVE COURTS THAT STRESS DRUG TREATMENT."

DEFENCE ATTORNEY GENE HART; AS REPORTED BY JEFF MELLOTT ON DNRONLINE.NEWS;
PHOTO: JUSTICE ANTONIN SCALIA;
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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.------------------------------------------------------------------------------
I really enjoyed reading defence lawyer Gene Hart's prediction that the pressure to have a lab technician in court could also lead the state to expand alternative courts that stress drug treatment in reporter Jeff Mellott's story on dnronline.news published on July 23, 2009;

It boggles my mind that the people who run our criminal court systems should need a decision like Melendez-Diaz to push them toward an alternative drug treatment court system - as exists at the Old City Hall courthouse in Toronto - to try to stem drug addiction and put an end to the revolving court door process;

Jeff Mellott's story ran inder the heading, "General Assembly To Address High Court Ruling On Lab Techs.

"HARRISONBURG - A recent U.S. Supreme Court decision has led Gov. Timothy M. Kaine to call a special session of the General Assembly for Aug. 19, and Del. Todd Gilbert, R-Woodstock, is ready with draft legislation," Mellott's story began.

"The court ruling, handed down June 25 in Melendez-Diaz v. Massachusetts, requires that lab technicians who conduct tests on court evidence be made available to defendants for cross-examination," the story continued;

"To ease scheduling of the court appearances of the limited number of lab technicians statewide, a proposal that General Assembly staff drafted for Gilbert would require the prosecution to notify the defense of its intent to use a document called a "certificate of analysis."

If the defense attorney objects, the lab technician would have to testify, according to the proposed legislation. The notice would allow the lab technician to be scheduled for court and prevent case dismissals.

In a statement Gilbert released Wednesday, the delegate, a 12-year career prosecutor, called the Supreme Court decision "shortsighted."

The ruling, he said, "is tying the hands of prosecutors attempting to convict and punish drug dealers and drunk[en] drivers."

Since the ruling, Gilbert said the commonwealth's attorney's office he works in has subpoenaed lab technicians as a precaution against potential defense efforts to get cases dismissed.

Session Support

Valley lawmakers were supportive of the special session after Kaine set the date Wednesday.

"After talking to local law enforcement and the commonwealth's attorneys' offices, we need to act sooner rather than later on this issue," said Del. Steve Landes, R-Weyers Cave, in a statement.

Del. Matt Lohr, R-Broadway, said "drug dealers and drunk[en] drivers should not be allowed to walk free on the technicality that the lab analyst is not present."

State Sen. Ken Cuccinelli, R-Fairfax, the Republican candidate for attorney general, urged the governor to call a special session in a letter on July 10.

Kaine, however, had been looking to see if the state could remedy the problem administratively, instead of through legislation.

Court Case

In Melendez-Diaz, the court noted defendants have the right to face their accusers under the Sixth Amendment to the U.S. Constitution.

This means that lab technicians involved in testing case evidence must appear in court.

Until the ruling, judges in Virginia and elsewhere accepted written reports to validate evidence.

According to The Associated Press, the ruling has raised concerns that the Virginia Department of Forensic Science's 160 employees would be unable to keep up with their lab work if they were constantly in court.

Last year, the department handled nearly 60,000 cases statewide, the AP reported.

"This [ruling] has caused a logistical nightmare for lab personnel and prosecutors across Virginia. As a result, drug and DUI cases are in jeopardy all over Virginia," said Gilbert, an assistant commonwealth's attorney in Frederick County.

Remedy

Gilbert plans to show defense attorneys and prosecutors his draft legislation for possible improvements.

Gilbert's hope is that the proposed legislation would reinstate reliance on the test reports.

"We trust the integrity of our lab system. We trust the validity of these tests," he said.

Setting a time limit for defendants to notify the court solves the state's statutory problem, said Gene Hart, a defense attorney for 13 years.

But Hart, a Rockingham County Democrat who is challenging Lohr in the 26th House District, said the court ruling is likely to lead to other changes in the way the legal process works.

One outcome of the Melendez-Diaz case may be to increase the ability of defense attorneys to get better deals for their clients, Hart said.

The pressure to have a lab technician in court, Hart said, could also lead the state to expand alternative courts that stress drug treatment.

Other Business

Dealing with the ruling should not be the only business conducted during the special session, said Democrat John Lesinski of Washington on Wednesday.

Lesinski is challenging Gilbert in the 15th House District.

While in Richmond, Lesinski hoped lawmakers would also take up accepting federal stimulus money to expand unemployment benefits.

The Republican-controlled House of Delegates turned down the money while in session earlier this year, but Democrats supported accepting it.

- The Associated Press contributed to this story.

Harold Levy...hlevy15@gmail.com;

UP-DATE; SASKATCHEWAN; FLAWED X-RAYS, CT SCAN AND MAMMOGRAPHS; DR. DARIUS TSATSI FIGHTS BACK; SAYS HE IS A VICTIM OF RETRIBUTION; CBC REPORTS;

"THE HEALTH REGION HAS ORDERED A REVIEW OF ABOUT 70,000 X-RAYS, CT SCANS, MAMMOGRAMS AND ULTRASOUNDS AFTER PEERS FOUND PROBLEMS WITH MORE THAN 100 OF TSATSI'S CASES GOING BACK FIVE YEARS.

BUT TSATSI SAID THE MAMMOTH REVIEW IS THE RESULT OF AN ONGOING DISPUTE BETWEEN HIMSELF AND THE COLLEGE, CLAIMING HE WAS HELD TO A HIGHER STANDARD THAN OTHER DOCTORS WHILE HE WAS GOING THROUGH CERTIFICATION IN SASKATCHEWAN. HE FILED A LEGAL ACTION ALLEGING UNFAIR TREATMENT AND LOST."

CBC NEWS;

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Background: Saskatchewan is the province where Dr. Charles Smith was hired on a one-year contract with the expectation that he would eventually become a full-time employee - with the support of a colleague from medical school - to work as a pathologist after he left Ontario in disgrace. (Smith's contact was terminated after news of his employment became public);

The Canadian Broadcasting Corporation reported on May 31, 2009, that: "Questions of competency were raised 2½ years ago about the radiologist (Dr. Darius Tsatsi) whose work has led to an unprecedented review of 70,000 medical images, a spokesman for the College of Physicians and Surgeons of Saskatchewan says."

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CBC news reported yesterday that Dr. Darius Tsatsi has gone public in his battle against the Saskatchewan College of Physicians and Surgeons in a story which ran under the heading "Suspended radiologist says he is victim of retribution."

"Dr. Darius Tsatsi was featured in a CBC-TV report in 2005 on his family's first Christmas in Canada. (CBC)A Yorkton physician, suspended while thousands of patient test results are reviewed, said Wednesday Saskatchewan's College of Physicians and Surgeons is making him a scapegoat because he once sued them," the story begins;

"Dr. Darius Tsatsi agreed in May to a voluntary suspension from his role as a radiologist with the Sunrise Health Region after health officials claimed to have found serious problems with his work," the story continues;

"The health region has ordered a review of about 70,000 X-rays, CT scans, mammograms and ultrasounds after peers found problems with more than 100 of Tsatsi's cases going back five years.

But Tsatsi said the mammoth review is the result of an ongoing dispute between himself and the college, claiming he was held to a higher standard than other doctors while he was going through certification in Saskatchewan. He filed a legal action alleging unfair treatment and lost.

He alleged Wednesday that the review of his work was ordered as retribution for taking the college to court.

"If you are alone, different, and you dare to question, we will show you. You'll be re-examined whether your previous assessment was good or not. Even if the reason for the re-assessment is not sufficient or fitting, we will re-examine you again and again. This has been a modern-day lynching."

Says he couldn't defend himself
Tsatsi claimed he was never able to defend himself when his work was questioned.

"I don't believe they're real. I make mistakes like everyone else. If you read what they say, if you had access to that document, it says, 'Look, Dr. Tsatsi is not dangerous.' "

Tsatsi said he has not been allowed to examine any of the images under review and that the situation has ruined his career and harmed his family.

Meanwhile, Saskatchewan's College of Physicians and Surgeons denies Tsatsi's allegations.

The college's legal counsel, Bryan Salte, said it's obviously difficult to have one's work questioned. But the role of the college is the protection of the public.

"The college obviously has an obligation to be fair to physicians in the position of Dr. Tsatsi," said Salte. "The court found that that's what we had done, and certainly, we intend to continue doing that. But the real purpose of the process is to try to make sure the public is protected and that the physicians that they receive treatment from are practicing to an appropriate standard. That's what the college seeks to do."

Tsatsi had his privileges suspended May 14 after questions over "the interpretation of diagnostic images" arose.

The health unit believes there were "potential misinterpretations" of some of the images.

Tsatsi was one of three radiologists at the Yorkton Regional Health Centre.

A preliminary review of Tsatsi's work was conducted last year by the College of Physicians and Surgeons of Saskatchewan. The college had three other doctors take a second look at 103 of Tsatsi's cases covering the period May 28 to Nov. 14, 2008.

The result was "significant clinical differences of opinion" in some of the cases, the health region said.

Another 70,000 exams, going back five years, are now under review — a process that will take months.

Tsatsi was trained in South Africa and has been working in Saskatchewan since 2004. He has also worked in the Cypress Health Region in the province's southwest and the Prince Albert Parkland Health Region.

Officials have said Tsatsi twice took an exam to be certified in Saskatchewan and has failed both times. While he has one more chance to pass, while the investigation is underway, Tsatsi has agreed not to practice radiology, officials said.

Tsatsi said he is reviewing his options — including legal action against the college, the health region and the Saskatchewan Ministry of Health."

The CBC story can be found at:

http://www.cbc.ca/canada/saskatchewan/story/2009/07/22/sask-physician.html

Harold Levy...hlevy15@gmail.com;

JURYGATE; DEFENCE LAWYERS PREDICT A "SLEW" OF APPEALS BASED ON SECRET BACKGROUND CHECKS ON JURORS, TORONTO STAR REPORTS;

"DEFENCE LAWYERS HAVE PREDICTED A SLEW OF APPEALS IN THE WAKE OF REVELATIONS THAT POLICE CONDUCTED SECRET BACKGROUND CHECKS ON PROSPECTIVE JURORS AT THE BEHEST OF PROSECUTORS.

AYRE'S LETTER WAS IN RESPONSE TO ONE FROM FRANK ADDARIO, PRESIDENT OF THE CRIMINAL LAWYERS' ASSOCIATION, WHO DEMANDED THAT THE MINISTRY "COLLECT AND PRESERVE ALL RELEVANT INFORMATION REGARDING THE EXTENT AND DURATION OF THE PRACTICE ACROSS THE PROVINCE.""

REPORTER PETER SMALL; THE TORONTO STAR;

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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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The Toronto Star reports that appeals based on secret vetting of juror's background's will lead to numerous appeals.

"The province's chief prosecutor is pledging to dig up cases where secret jury background checks were made and notify the defence lawyers involved," the Star's Peter Small reported yesterday in a story headed, "Ontario reveals juries given secret background checks."

"In a letter to the province's defence lawyers, John Ayre says he has asked two senior managers to review all available Crown files over the past three years in the Barrie and Windsor areas, where the practice has chiefly taken place and has led to three mistrials," the story continues;

""Where it appears that any type of background check was conducted and the information was not disclosed, defence counsel of record will be notified and provided with disclosure of any available material," Ayre says in his July 14 letter.

A ministry spokesperson said that the notices are going out this week.

Defence lawyers have predicted a slew of appeals in the wake of revelations that police conducted secret background checks on prospective jurors at the behest of prosecutors.

Ayre's letter was in response to one from Frank Addario, president of the Criminal Lawyers' Association, who demanded that the ministry "collect and preserve all relevant information regarding the extent and duration of the practice across the province."

Addario told the Star that he accepts Ayre's pledge at face value.

"The disclosure of what happened and where is an important ingredient to resolving the uncertainty that hangs over cases affected by the practice," Addario said.

Crown prosecutors in Barrie and Windsor have had jury panel lists with notes beside prospective jurors about minor infractions, health records and even their attitudes to police.

Ontario's privacy commissioner, Ann Cavoukian, has ordered a probe.

In his letter, Ayre said that a number of defence counsel across the province have already been making inquiries about specific cases.

"They have been given a response, or a response is pending," Ayre said.

On May 26, Ayre issued a memo reminding Crowns that it is not acceptable to check prospective jurors for anything beyond whether they have indictable – the most serious – criminal offences.

Criminal lawyer Ben Fedunchak is raising the issue of juries vetting in the Barrie murder trail of a youth convicted of stabbing 14-year-old Brayton Bullock in 2006.
Fedunchak, who represents the youth who was about to be sentenced, last week asked Justice Alfred Stong for the verdict to be thrown out largely on the basis that the Crown secretly vetted potential jurors.

The case returns to Barrie Superior Court on Aug. 25.

Harold Levy...hlevy15@gmail.com;

MELENDEZ-DIAZ CASE: ARE WORRIES ABOUT SOTOMAYER'S TOUGH-ON-CRIME JURISPRUDENCE MISPLACED? SOME QUESTIONS THAT SHOULD HAVE BEEN ASKED; RADLEY BALKO;

"THIS IS ALL THE MORE TROUBLING GIVEN THE CRITICAL ROLE SOTOMAYOR WILL LIKELY PLAY ON KEY CRIMINAL JUSTICE CASES DURING HER LIKELY TENURE. IN THE LAST TERM ALONE, THERE WERE SIX CRIME CASES IN WHICH THE DEFENSE POSITION WON ON A 5-4 VOTE, WITH DEPARTING JUSTICE DAVID SOUTER CASTING A VOTE WITH THE MAJORITY. IN ONE OF THOSE CASES, MELENDEZ-DIAZ V. MASSACHUSETTS, THE COURT HELD THAT THE SIXTH AMENDMENT'S CONFRONTATION CLAUSE GIVES CRIMINAL DEFENDANTS THE RIGHT TO CROSS-EXAMINE ANY FORENSIC EXPERT WHOSE WORK IS SUBMITTED AS EVIDENCE, A PARTICULARLY IMPORTANT DECISION GIVEN A DAMNING REPORT ON THE RELIABILITY OF FORENSIC SCIENCE ISSUED EARLIER THIS YEAR BY THE NATIONAL ACADEMIC OF SCIENCES. THE DECISION HAS ALREADY SENT SHOCKWAVES THROUGH THE CRIMINAL JUSTICE SYSTEM."

RADLEY BALKO; REASON MAGAZINE;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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The Melendez-Diaz case has prompted another column by Radley Balko, a senior editor at Reason Magazine - in this Bloggist's view one of the most perceptive commentators on the U.S. criminal justice system.

The column ran yesterday under the heading, "Criminal Justice Missing From Sotomayor Hearings" and the sub-heading, "No one cares to discuss the Supreme Court's most important function: protecting the rights of the accused."

"Last week's confirmation hearings for Supreme Court nominee Sonia Sotomayor included much of what we expected: Probing questions from Republicans on hot-button culture war issues such as abortion, gay marriage, gun control, race, and affirmative action; and deference, deflection, and fawning praise from Democrats. Almost entirely left out of the discussion was a subject you might think has some relevance to the Supreme Court: the criminal justice system," the column begins;

"Determining the extent of constitutional protections for suspects and defendants may well be the Supreme Court's most important task," it continues;

"The framers of the Constitution thought so: four of the 10 amendments that make up the Bill of Rights lay out explicit protections for criminal defendants. Yet even though the Court has addressed a number of important Fourth, Fifth, Sixth, and Eighth Amendment cases in recent years, Sotomayor was never seriously challenged on her record of criminal justice jurisprudence. The few times these issues were broached at all, it was in the form of a friendly question from a Democrat, phrased to demonstrate that Sotomayor will be as tough on crime as any Republican appointee.

Sen. Chuck Schumer (D-NY), for example, noted with satisfaction in his introductory comments that over the course of her career, Sotomayor has "ruled for the government in 83% of immigration cases, in 92% of criminal cases." Sen. Amy Klobuchar (D-Minn.), a former prosecutor, used a portion of her Q&A with Sotomayor to highlight and praise instances in which Sotomayor was willing to excuse police officers who violated the Fourth Amendment. Democrats on the Senate Judiciary Committee also brought in law enforcement officials to testify in support of Sotomayor, including former Manhattan District Attorney Henry Morgenthau, former FBI Director Louis Freeh, and a representative from the Fraternal Order of Police. Republican members didn't call a single witness to critique Sotomayor's record on crime from the right. No wonder some criminal defense attorneys are worried.

One person neither party asked to testify is Jeffrey Deskovic, who was convicted at age 17 of a rape and murder he didn't commit. In 2000, Sotomayor and another judge on the 2nd Circuit Court of Appeals issued a curt, two-page ruling that refused to even consider Deskovic's innocence claim because his attorney filed four days late (the attorney says he was given bad information by a court clerk). "We have considered all of petitioner-appellant’s remaining arguments and find them to be without merit," the opinion read. Deskovic, who had already served 10 years, went on to serve another six before DNA testing led police to the actual killer. In a moving essay earlier this month, Descovic asked to be heard.

I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

Last month, Vice President Biden told a gathering of law enforcement organizations that Sotomayor "has got your back," a startlingly inappropriate (even for Biden) assurance about a potential Supreme Court justice. Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers.

But Biden isn't the only one to share that assessment. Sotomayor's confirmation has been endorsed by eight major law enforcement groups. The L.A. Times reported last month that according to former colleagues, Sotomayor's time as a "zealous prosecutor" made her into "something of a law-and-order judge, especially when it comes to police searches and the use of evidence." New York criminal defense lawyer Gerald Lefcourt said Sotomayor "always seemed to be leaning toward the government," adding that she was "very police-like. Dismissive of what the defendant had to say about anything." Slate's Emily Bazelon also reported on one extraordinary case in which Sotomayor was able to convince a more conservative 2nd Circuit judge to join her in overturning a jury verdict against an off-duty police officer accused of threatening and assaulting a truck driver, on grounds that even off-duty cops have broad powers to make arrests.

If a Republican nominee had such a criminal justice track record, leftist advocacy groups would probably be up in arms—or at least concerned. And rightly so. But even criminal justice groups have been conspicuously quiet. The American Civil Liberties Union did publish a thorough review of Sotomayor's judicial record, but has maintained a sort of passive support for her nomination. Executive Director Anthony Romero said that although "the ACLU does not officially endorse or oppose US Supreme Court candidates, I have never been personally prouder of any appointment." Romero must have a short memory. The ACLU explicitly opposed Samuel Alito in 2006, and was publicly critical of John Roberts in 2005.

This is all the more troubling given the critical role Sotomayor will likely play on key criminal justice cases during her likely tenure. In the last term alone, there were six crime cases in which the defense position won on a 5-4 vote, with departing Justice David Souter casting a vote with the majority. In one of those cases, Melendez-Diaz v. Massachusetts, the Court held that the Sixth Amendment's Confrontation Clause gives criminal defendants the right to cross-examine any forensic expert whose work is submitted as evidence, a particularly important decision given a damning report on the reliability of forensic science issued earlier this year by the National Academic of Sciences. The decision has already sent shockwaves through the criminal justice system.

But just before ending its most recent term, the Court agreed to hear a case from Virginia (PDF) that raises similar issues regarding DNA testing. This has led some Court watchers to speculate that the minority in Melendez-Diaz sees Sotomayor as a potential ally who may join them to limit the scope of—or even overturn—last term's ruling. Sen. Klobuchar did ask Sotomayor about Melendez-Diaz, but only to express her disappointment with the ruling and her hope that the Court, presumably with Sotomayor's help, will overturn it. Sotomayor gave a typical confirmaiton hearing answer, acknowleding Klobuchar's concerns, stating that Melendez-Diaz is now established law, but ultimately refraining from speculating on how or whether she might limit its impact.

The New York Times reported in January that the Court is inching ever closer to eliminating or rendering impotent the Exclusionary Rule, which bars evidence obtained through illegal searches from being admitted at trial. Chief Justice John Roberts, the paper explained, is a longtime opponent of the rule, having led a campaign to repeal it as a young attorney in the Reagan administration. Replacing Souter, a fairly reliable defender of the Exclusionary Rule, with a former prosecutor like Sotomayor will likely at least narrow the rule’s application. Wall Street Journal reporters Jess Bravin and Nathan Koppel came to a similar conclusion last month, writing that while Sotomayor "stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice."

Content-free as they were, last week’s hearings were a tidy composite of the national debate over criminal justice issues. Which is to say that there really isn't any such debate. By conventional wisdom, defendants’ rights have traditionally been a concern only of the left. But you'd never know that by observing national politics. Criminal justice activists are fond of saying that Republicans are evil, but Democrats are spineless. That's not entirely accurate. Democrats such as Biden have been plenty active in dismantling constitutional protections against police power. Some of today's most draconian federal crime statutes were authored by Democrats.

Even as DNA testing has exposed serious flaws in a process once believed to be mostly (or at least tolerably) just, politics still really only affords one acceptible position on crime: We need to get tougher on it.

It's possible that worries over Sotomayor’s tough-on-crime jurisprudence are misplaced. Perhaps thus far in her career, her written opinions were bound by existing case law and procedural rules, and that as a precedent-setting Supreme Court justice she'll prove to be a staunch defender of the Exclusionary Rule and the Confrontation Clause, and her sensitivity to innocence claims will be sharpened by cases like Jeffrey Deskovic's.

It's possible. The problem is that we really have no idea. Because no one bothered to ask."

The column can be found at:

http://www.reason.com/news/show/134889.html

Harold Levy...hlevy15@gmail.com;

A POWERFUL, UNEQUIVOCAL DEFENCE OF MELENDEZ-DIAZ: THANK YOU MATT KAISER; IT'S ABOUT TIME;

"SECOND, CROSS EXAMINING LAB TECHNICIANS MATTERS. IT IS NOT A “MERE TECHNICALITY.” THESE PEOPLE MAKE MISTAKES. WHEN THEY MAKE MISTAKES, PEOPLE GO TO PRISON FOR THE WRONG THING. THEIR LIVES ARE DESTROYED; THEIR CHILDREN GROW UP WITHOUT A PARENT. HAVING A CHECK ON WHAT THE LAB TECHS DO WILL MEAN THAT THEY SCREW UP LESS, AND THAT FEWER INNOCENT PEOPLE GO TO PRISON. BOTH ARE REALLY GOOD THINGS TO HAVE IN A CRIMINAL JUSTICE SYSTEM."

MATT KAISER; THE KAISER BLOG;
PHOTO; JUSTICE ANTONIN SCALIA;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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I have found it difficult to understand why American defence lawyers - and their organizations - have not come up with a more vigorous defence of the Melendez-Decision as a necessary weapon for avoiding miscarriages of justice caused because of forensic breakdowns;

That's why I was pleased to stumble on Matt Kaiser's Blog - published earlier today - called "Why Melendez-Diaz is good policy."

"In Melendez-Diaz, the Supreme Court held that the information in laboratory technician reports can only be introduced against a criminal defendant if the person has had the opportunity to cross-examine the lab tech who did the testing," Kaiser begins;

"This has created an outcry among prosecutors and others. (See previous coverage on the topic on this blog here and here). Admittedly, the decision is a change in the way business has been done in our criminal courts. Such a change is bound to be met with resistance, because it will create more work for the government to convict people," he continues.

Be sure to point if you cross a lab tech:
I received an email from a friend of mine about the effect of Melendez-Diaz on the war on drugs. Drug prosecutions work only because they are able to be done in volume. If the defendants refuse to plead, and prosecutors have to call lab techs, they can quickly overrun the system such that drug prosecutions will quickly become rare.

One writer argues that Melendez-Diaz is a bad idea because,

The proliferation of drug arrests would cripple our state toxicology laboratory if a witness were required in every drug trial. In nearly all instances, the testing is reliable so requiring the toxicologist to appear is no more than a formality. It’s rare where a legitimate challenge can be raised to the reliability of a particular drug screening.

I think this is wrong; Melendez-Diaz is good policy for two reasons. I’ll explain what they are, after the jump.

First, the rumors of the death of the drug prosecution are greatly exaggerated. For better or worse. criminal defendants, and criminal defense lawyers, do not behave like union members being forced to work under an unfair contract. Criminal defendants do not, and generally will not, coordinate a systematic strategy of refusing to plead so that they can overwhelm the state.

Sure, there will be some lawyers who insist on taking cases to trial where prosecutors are unwilling to offer a reasonable plea (though I can see a pretty easy fix for that). Defense lawyers will be watching closely how the government in each jurisdiction handles getting their witnesses to court.

I practice in federal court. Federal judges are notorious for bending the court’s schedule to accommodate government witnesses. And if the prevailing judicial winds are that they think Melendez-Diaz is a technicality to be worked around, they’ll be more willing to be accommodating. Of course, they won’t be endlessly flexible, and it will vary significantly by judge.

In most jurisdictions, I don’t think there will be a great rush of defendant’s to trial, but, rather, a great pressure on prosecutors to cut much better deals to make taking a plea worth not betting that the state can’t call it’s witnesses.

So, to summarize point one – the sky is not falling.

Second, cross examining lab technicians matters. It is not a “mere technicality.” These people make mistakes. When they make mistakes, people go to prison for the wrong thing. Their lives are destroyed; their children grow up without a parent. Having a check on what the lab techs do will mean that they screw up less, and that fewer innocent people go to prison. Both are really good things to have in a criminal justice system.

That said, maybe I’m wrong. So, what I encourage any reader to do is to email me any instance of a lab tech being crossed well. Any error being pointed out, any failure to maintain a chain of custody, or do the testing properly.

Melendez-Diaz is going to mean a lot more lab techs get crossed a lot more aggressively. If something’s working, please share it.

Matt Kaiser's Blog - the Kaiser Blog - can be found at:

http://thekaiserlawfirm.com/blog/

Harold Levy...hlevy16@gmail.com;

JURYGATE; THREE STRIKES AND YOU'RE OUT? MISTRIAL ORDERED BECAUSE OF TAINTED JURY SELECTION BY CROWN; NEW JURY ALSO TAINTED; SECOND MISTRIAL DECLARED!

"A PREVIOUS MISTRIAL WAS ALREADY CALLED IN THIS CASE AFTER DEFENCE LAWYER MITCHELL WORSOFF INSISTED THE CROWN HAD CONDUCTED "ILLEGAL" BACKGROUND CHECKS ON THE JURY POOL BEFORE JURY SELECTION BEGAN. A SECOND JURY POOL WAS BROUGHT IN, BUT WORSOFF SOON DISCOVERED THE CROWN HAD CONDUCTED BACKGROUND CHECKS ON THAT GROUP AS WELL, AND SO JURY SELECTION BEGAN ONCE AGAIN WITH A FRESH, "UNTAINTED" PANEL. ON FRIDAY, THE CROWN WAS AT THE BRINK OF CLOSING ITS CASE WHEN SUDDENLY THE JUDGE CALLED ANOTHER MISTRIAL;"

REPORTER TRACY MCLAUGHLAN; SPECIAL TO SUN MEDIA;
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Background: In a previous post I asked: "Why didn't Ontario prosecutors examine Dr. Charles Smith's qualifications a bit more closely over the years, pay more attention to court decisions suggesting he was biased towards the Crown and that that his opinions were seriously flawed - or at least share the existence of these decisions with the defence?"

My answer was that some prosecutors cared more about winning the case than the possibility that an innocent person might be convicted;

I buttressed my response with the story recently broken by the National Post that prosecutors in several parts of Ontario have been asking police to do secret background checks on jurors.

This controversy has lead to numerous requests for mistrials and could result in a bids to open numerous cases where accused persons have been convicted in the shadow of the illegal practice which taints a criminal jury trial from the outset.

The Charles Smith Blog is very much concerned with the question as to how far prosecutors will go to win the case and is therefore monitoring developments on a regular basis;

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A Barrie, Ontario trial which has foundered twice because of a tainted jury selection process, has now now been hit with a second mistrial.

The story, published earlier today, is told by reporter Tracy McLaughlan in Sun Media under the heading, "Judge declares mistrial -- again; Alleged street racer accused in deadly Hwy. 400 crash."

"BARRIE -- A jury trial in a high-profile street racing case was suddenly shut down Friday and the jury sent home," the story begins;

"The trial against alleged street racer Ravi Badhwar, 23, has been convoluted at best after it began June 1 and was originally set for only two weeks," it continues;

"Badwhar is charged with street racing causing death and failing to remain at the scene after truck driver David Virgoe, 48, was forced to swerve off the highway into a ditch and was killed June 18, 2007.

The Crown had called 13 witnesses -- many of whom testified they were terrified as they drove along Hwy. 400 when three vehicles suddenly began racing against each other and weaving in and out of traffic at speeds reaching 170 km/h.

Court heard the highway was filled with smoke and dust after drivers were forced to slam on their breaks in the middle of the highway.

The drivers of two of the vehicles have pleaded guilty, but Badhwar has insisted he wasn't part of the racing.

A previous mistrial was already called in this case after defence lawyer Mitchell Worsoff insisted the Crown had conducted "illegal" background checks on the jury pool before jury selection began.

A second jury pool was brought in, but Worsoff soon discovered the Crown had conducted background checks on that group as well, and so jury selection began once again with a fresh, "untainted" panel.

On Friday, the Crown was at the brink of closing its case when suddenly the judge called another mistrial.

In court, the trucker's widow and daughter broke down and cried after hearing the trial wouldn't continue.

Throughout the trial, the mother and daughter sat quietly at the front of the court, sometimes wiping away tears as the court was shown photographic evidence of Virgoe's tanker truck in a twisted heap in the ditch on the highway.

"I know the accused has a right to a fair trial," she said later in an interview, "but what about the rights of the victim? ... How long does this go on?"

There is a publication ban on the reason for this latest mistrial.
A new trial with a new jury is set to begin on Aug. 31.

Harold Levy...hlevy15@gmail.com;

THE MELENDEZ-DIAZ CASE: RADLEY BALKO PREDICTS MAY ULTIMATELY DEAL WITH THE RIGHT TO CONFRONT EXPERT WITNESS ISSUE;

"JUST GIVEN MY OWN REPORTING ON FORENSICS OVER THE LAST FEW YEARS, I FIND IT MIND-BOGGLING THAT THERE ARE PEOPLE WHO FEEL A COURT SHOULD BE ABLE TO DENY A DEFENDANT THE OPPORTUNITY TO CROSS-EXAMINE, FOR EXAMPLE, THE MEDICAL EXAMINER WHO PERFORMED THE AUTOPSY IN A MURDER CASE, OR THE LAB TECHNICIAN WHO CLAIMS TO HAVE MADE A FINGERPRINT MATCH."

RADLEY BALKO: REASON;
PHOTO: JUSTICE ANTONIN SCALIA;

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Background: It's not every day that an issue involving the work of forensic scientists in the criminal courts comes under scrutiny in the Supreme Court of the United States; Nor is it every day that the Supreme Court issues a searing indictment of the forensic science system in the country and faces head-on the abuses such as manipulation, prosecutorial pressure, outright fraud, bias, error and incompetence. Canadians are well aware of this through the many miscarriages of justice caused in Ontario by Dr. Charles Smith. Americans, who haven't received this message yet, will learn it from the blunt words of Justice Antonin Scalia for the majority. The Supreme Court ruled that a state forensic analyst’s laboratory report prepared for use in a criminal prosecution is “testimonial” evidence and therefore subject to "confrontation" through cross-examination of the analyst - but not before Justice Scalia told Americans how vulnerable they are to wrongful convictions as a result of American forensic science as it is practiced today. They need all of the protection of the law that they can get.

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From time to time I have focussed on Radley Balko's analysis of America's criminal justice system through articleh he has published on his Blog. (Reason.com);


Earlier today, (on July 16, 2009) Balko focussed his razor-sharp mind on the Melendez-Diaz case in an article headed: "Sotomayor's First Big Case May Deal With the Right To Confront Expert Witnesses."


"A few weeks ago, I posted on the Supreme Court's decision in the Melendez-Diaz case, in which the Court found that the Sixth Amendment's confrontation clause gives criminal defendants the right to cross examine forensic experts who issue lab reports that the state admits into evidence," the article begins;

"The Washington Post reports this week that the decision will have broad-reaching ramifications," it continues;

"The predictions are dire. In New York, murderers could walk free. In Fairfax County, drunken driving cases could be dismissed. And nationwide, thousands of drug cases might have to be thrown out of court annually.

Legal experts and prosecutors are concerned about the results of last month's U.S. Supreme Court ruling that requires lab analysts to be in court to testify about their tests. Lab sheets that identify a substance as a narcotic or breath-test printouts describing a suspect's blood-alcohol level are no longer sufficient evidence, the court ruled. A person must be in court to talk about the test results...

Crime labs that test drug and DNA samples face huge backlogs even when scientists and analysts do not have to testify. If the workers are taken out of the labs to appear in court, those backlogs will grow.

In drug cases, more than 1.5 million samples are analyzed by state and local labs each year, resulting in more than 350,000 felony convictions, national statistics show. "Even if only 5 percent of drug cases culminate in trials, the burden on the states is oppressive," a group of state attorneys general wrote in a brief for the case.

The percentage of cases going to trial could well go up if defense lawyers think that bringing lab analysts to court will help their cases. Lawyers also could go to trial with the hope of a dismissal if the analyst cannot be there.

Note that the objections here are logistical, not legal. Justice Anthony Kennedy's sharply-worded dissent in the case took a similar line, arguing that the decision "threatens to disrupt forensic investigations across the country and to put prosecutions nationwide at risk of dismissal . . . when a particular laboratory technician . . . simply does not or cannot appear."

These objections seem awfully utilitarian. We're supposed to ignore a fundamental component of a fair trial that's explicitly protected in the Constitution—the right to confront one's accusers—because doing so would prove inconvenient to the state? (Note too that the main reason for the backlog at state crime labs is the drug war.)

Just given my own reporting on forensics over the last few years, I find it mind-boggling that there are people who feel a court should be able to deny a defendant the opportunity to cross-examine, for example, the medical examiner who performed the autopsy in a murder case, or the lab technician who claims to have made a fingerprint match.

Unfortunately, the decision my already be in peril. Before its most recent recess, the Court agreed to hear Briscoe, et al., v. Virginia (PDF) a case that raises many of the same issues as Melendez-Diaz. Justice Souter voted with the unconventional majority in the 5-4 decision. His likely replacement, Sonia Sotomayor, is a former prosecutor whose record suggests she'll be quite a bit more law-and-order than Souter. Lyle Denniston at SCOTUSBlog speculates that the minority in Melendez-Diaz may have agreed to hear the Virginia case knowing that they'd have an ally in Sotomayor, suggesting a limitation or even reversal of the decision.

Surprisingly, the case did come up yesterday while Sotomayor was questioned by Sen. Amy Klobuchar (D-Minn.), also a former prosecutor. Klobuchar was critical of Melendez-Diaz, and invited Sotomayor to respond. Not surprisingly, Sotomayor's response was vague:

It's always difficult to deal with people's disappointments about cases, particularly when they have personal experiences and have their own sense of the impact of a case.

I was a former prosecutor. And it's difficult proving cases as it is. Calling more witnesses adds some burdens to the process.

But, at the end, that case is a decided case. And so its holding now is its holding, and that's what guides the court in the future on similar issues to the extent there can be some.

As I said, I do recognize that there can be problems, as a former prosecutor, but that also can't compel a result. And all of those issues have to be looked at in the context of the court's evaluation of the case and the judge's view of what the law permits and doesn't permit.

The American Spectator's John Tabin suggests Sotomayor's answer hints that she would not use the Virginia case to overturn Melendez-Diaz. I agree, although I don't think an outright reversal was in the cards in the first place. A reversal of a decision issued in the preceding term would be unseemly. The more likely possibility is that the Virginia case will limit the scope of Melendez-Diaz. Given how far apart the majority and minority were in the case, and that without Souter the Court stands 4-4 on this issue, the severity of that limitation may be entirely up to Sotomayor."

The Balko article - complete with links - can be found at:

http://reason.com/blog/show/134853.html

Harold Levy...hlevy15@gmail.com;